Exhibit 10.2
STOCKHOLDERS AGREEMENT
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THIS STOCKHOLDERS AGREEMENT (this "Agreement") is dated as of January 3,
2002, among ASA International Ltd., a Delaware corporation ("ASA"), Rainmaker
Software, Inc., a Delaware corporation and a wholly-owned subsidiary of ASA
("Merger Sub"), and the other parties signatory hereto (each, a "Shareholder").
RECITALS
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WHEREAS, each Shareholder desires that CompuTrac, Inc., a Texas corporation
("CompuTrac"), ASA and Merger Sub enter into an Agreement and Plan of Merger
dated as of the date hereof (as the same may be amended or supplemented, the
"Merger Agreement") with respect to the merger of CompuTrac with and into Merger
Sub (the "Merger"); and
WHEREAS, each Shareholder is executing this Agreement as an inducement to
ASA to enter into and execute, and to cause Merger Sub to enter into and
execute, the Merger Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by ASA and
Merger Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. Each Shareholder individually as to
himself, herself or itself, and not jointly, represents and warrants to ASA and
Merger Sub as follows:
1.1 Such Shareholder is the record and beneficial owner of the number of
shares of Common Stock, $0.01 par value per share (the "CompuTrac Stock") of
CompuTrac set forth opposite such Shareholder's name on Schedule A hereto (as
may be adjusted from time to time pursuant to Section 5, such Shareholder's
"Shares"). Except for such Shareholder's Shares, such Shareholder is not the
record or beneficial owner of any shares of capital stock of CompuTrac.
1.2 Such Shareholder has full power and authority to execute and deliver
this Agreement (including, without limitation, full power and authority to sell
the Shares and to receive shares of ASA Common Stock in exchange for the Shares
in connection with the Merger). This Agreement has been executed and delivered
by such Shareholder and constitutes the legal, valid and binding obligation of
such Shareholder, enforceable against such Shareholder in accordance with its
terms. Neither the execution and delivery of this Agreement nor the consummation
by such Shareholder of the transactions contemplated hereby will result in a
violation of, or a default under, or conflict with, any contract, trust,
commitment, agreement, understanding, arrangement or restriction of any kind to
which such Shareholder is a party or bound or to which such Shareholder's Shares
are subject. To the best of such Shareholder's knowledge, consummation by such
Shareholder of the transactions contemplated by this Agreement will not violate,
or require any consent, approval, or notice under, any provision of any
judgment, order, decree, statute, law, rule or regulation applicable to such
Shareholder or such Shareholder's Shares.
1.3 Such Shareholder's Shares and the certificates representing such Shares
are now and at all times during the term hereof will be held by such
Shareholder, or by a nominee or custodian for the benefit of such Shareholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
1.4 No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission from ASA, Merger Sub or CompuTrac in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Shareholder.
1.5 Such Shareholder understands and acknowledges that ASA is entering
into, and causing Merger Sub to enter into, the Merger Agreement in reliance
upon such Shareholder's execution and delivery of this Agreement. Such
Shareholder acknowledges that the irrevocable proxy set forth in Section 3 is
granted in consideration for the execution and delivery of the Merger Agreement
by ASA and Merger Sub.
2. Covenants. Each Shareholder severally, and not jointly, agrees with, and
covenants to, ASA and Merger Sub as follows:
2.1 Such Shareholder shall not, except as contemplated by the terms of this
Agreement, (a) transfer (which term shall include, without limitation, for the
purposes of this Agreement any sale, gift, pledge or other disposition), or
consent to any transfer of, any or all of such Shareholder's Shares or any
interest therein, (b) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of such Shares or any
interest therein, (c) grant any proxy, power-of-attorney or other authorization
or consent in or with respect to such Shares, (d) deposit such Shares into a
voting trust or enter into a voting agreement or arrangement with respect to
such Shares, or (e) take any other action that would in any way restrict, limit
or interfere with the performance of his, her or its obligations hereunder or
the transactions contemplated hereby.
2.2 If the holders of two-thirds of CompuTrac Stock approve the Merger
Agreement, such Shareholder's Shares shall be exchanged, pursuant to the terms
of the Merger Agreement, for the consideration provided in the Merger Agreement.
Such Shareholder, as a result of having agreed to vote in favor of the Merger,
hereby waives any rights of appraisal, or rights to dissent from the Merger,
that such Shareholder may otherwise have.
3. Grant of Irrevocable Proxy; Appointment of Proxy.
3.1 Each Shareholder hereby irrevocably grants to, and appoints, ASA,
Xxxxxx X. Xxxxxxxx or Xxxxxxxx X. XxXxxxxx and any other individual who shall
hereafter be designated by ASA, such Shareholder's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of such
Shareholder, to vote such Shareholder's Shares, or grant a consent or approval
in respect of such Shares, at any meeting of shareholders of CompuTrac or at any
adjournment thereof or in any other circumstances upon which their vote, consent
or other approval is sought in favor of the Merger, the execution and delivery
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of the Merger Agreement and approval of the terms thereof, and each of the other
transactions contemplated by the Merger Agreement.
3.2 Such Shareholder represents that any proxies heretofore given in
respect of such Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
3.3 Such Shareholder hereby affirms that the irrevocable proxy set forth in
this Section 3 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of the Shareholder under this Agreement. Such Shareholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. Such Shareholder hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Article 2.29 of the Texas Business Corporation
Act.
4. Grant of Option.
4.1 Option Grant. Each Shareholder grants to ASA an exclusive and
irrevocable option (the "Option") to purchase, subject to the conditions to
exercise during the period specified in Section 4.3 and subject to the
conditions to closing set forth in Section 4.4, all of the Shares held by such
Shareholder at the exercise price specified in Section 4.2.
4.2 Exercise Price; Payment. The exercise price of the Option may be paid,
in the sole and absolute discretion of ASA, either: (a) in cash (by check or
wire transfer) at a price of $0.26 per Share; or (b) by issuing to each
Shareholder the number of fully paid and nonassessable shares of ASA Common
Stock that otherwise would have been issued to each Shareholder at the Effective
Time of the Merger pursuant to the Merger Agreement had the Merger occurred
without exercise of the Option (rounded up or down, as the case may require, to
avoid the issuance of fractional shares of ASA Common Stock); or (c) a
combination of cash and shares of ASA Common Stock. The exercise price set forth
in this Section 4.2 shall be referred to as the "Exercise Price."
4.3 Exercise of Option; Duration; Closings.
4.3.1 Subject to the conditions to closing set forth in Section 4.4, the
Option may be exercised at any time after the occurrence of an Exercise Event
(as defined below) and prior to the Expiration Date (as defined below);
provided, that the Option must be exercised in whole with respect to all Shares,
and not in part.
4.3.2 An "Exercise Event" shall occur for purposes of this Agreement upon
the occurrence of (a) any event or circumstance which, pursuant to the terms of
Section 8.4 of the Merger Agreement, would entitle ASA to terminate the Merger
Agreement (regardless of whether the Merger Agreement has actually been
terminated as a result of such event or circumstance); or (b)(i) an offer,
including an exchange offer, for at least 20% of the outstanding shares of
CompuTrac capital stock other than by ASA or any of its affiliates that has been
accepted by holders of at least 20% of the outstanding shares of XxxxxXxxx
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xxxxxxx xxxxx, (xx) an acquisition of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended), by any person, other than ASA or any of its affiliates, of at least
20% of the outstanding shares of CompuTrac capital stock, except for between
Shareholders or between Shareholders and their affiliates, or (iii) an agreement
by CompuTrac with any person, other than ASA or any of its affiliates, to
acquire CompuTrac or a controlling interest in CompuTrac by merger,
consolidation, purchase of substantially all of CompuTrac's assets, purchase of
stock or other business combination.
4.3.3 The "Expiration Date" shall be the date of the earliest to occur of
(a) the Effective Time (as defined in the Merger Agreement), or (b) the
termination of the Merger Agreement pursuant to Section 8.2 of the Merger
Agreement, if an Exercise Event shall not have occurred on or prior to such
termination date; provided that, if ASA has sent a Notice of Exercise prior to
the Expiration Date, the Expiration Date shall be extended during the pendency
of any legal action or proceeding or any other activity the resolution of which
would, or which is reasonably intended to, satisfy the condition set forth in
Section 4.4.1 and if such condition is thereafter satisfied, for a period of 15
days after the date such condition is satisfied.
4.3.4 To exercise the Option, ASA shall, prior to the Expiration Date, send
a written notice (a "Notice of Exercise") to the Shareholder specifying (a) the
location, date and time for the closing (a "Closing") of the purchase (which
date shall be no later than five calendar days and no earlier than the next day
after the date such notice is mailed, but in no event earlier than the date on
or by which the condition specified in Section 4.4.1 has been satisfied); and
(b) the form(s) in which the Exercise Price is to be paid with respect to the
Option. If the Closing is to occur sooner than three calendar days from the date
on which a Notice of Exercise is sent, notice shall also be given to each
Shareholder by confirmed facsimile, at the time the Notice of Exercise is sent,
of the information contained in such Notice of Exercise.
4.3.5 At the Closing, ASA shall: (a) to the extent it has elected to pay
the Exercise Price of the Option (with respect to all or any Shares) in cash,
deliver to each Shareholder by check or wire transfer an amount calculated by
multiplying the number of Shares with respect to which such election has been
made by $0.26; and/or (b) to the extent it has elected to pay the Exercise Price
of the Option in shares of ASA Common Stock, deliver to each Shareholder one or
more certificates, registered in the Shareholder's name, representing a number
of fully paid and nonassessable shares of ASA Common Stock equal to the number
of fully paid and nonassessable shares of ASA Common Stock that otherwise would
have been issued to each Shareholder at the Effective Time of the Merger
pursuant to the Merger Agreement had the Merger occurred without exercise of the
Option (rounded up or down, as the case may require, to avoid the issuance of
fractional shares of ASA Common Stock). Each Shareholder shall deliver to ASA
one or more certificates registered in the name of ASA, representing the Shares
subject to such Option exercise.
4.4 Condition to Closing.
4.4.1 Conditions to Closing Obligations of ASA and the Shareholder. The
respective obligations of ASA and each Shareholder to proceed with the Closing
shall be subject to the satisfaction prior to the Closing, of the condition that
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no order, statute, rule, regulation, executive order, stay, decree, judgment or
injunction shall have been enacted, entered, issued, promulgated or enforced by
any court or governmental authority, subsequent to the date of this Agreement,
that prohibits or restricts the effectuation of any of the transactions
contemplated by this Agreement or the Merger Agreement.
4.4.2 Additional Conditions to ASA's Closing Obligations. In addition to
the condition specified in Section 4.4.1, the obligation of ASA to proceed with
the Closing shall also be subject to the satisfaction of the following
conditions (except to the extent waived by ASA, in its sole and absolute
discretion), notwithstanding the prior giving of Notice of Exercise providing
for the Closing: (a) each Shareholder shall have performed and complied in all
material respects with the agreements and obligations contained in this
Agreement that are required to be performed and complied with by him, her or it
at or prior to the date of the Closing; and (b) the representations and
warranties of each Shareholder contained in this Agreement shall be true and
correct in all material respects as of the date of this Agreement, and shall be
deemed to have been made again at and as of the Closing and shall then be true
and correct in all material respects.
4.4.3 Additional Condition to Each Shareholder's Closing Obligations. In
addition to the condition specified in Section 4.4.1, the obligation of each
Shareholder to proceed with any Closing shall also be subject to the
satisfaction of the following condition (except to the extent waived by each
Shareholder, in such Shareholder's sole and absolute discretion): ASA shall have
performed and complied in all material respects with the agreements and
obligations contained in this Agreement that are required to be performed and
complied with by it at or prior to the date of the Closing.
4.5 Covenant by Each Shareholder. Each Shareholder shall at no time prior
to the Expiration Date take, or refrain from taking, any action where the effect
of so doing would be to (a) prevent or disable the Shareholder from delivering
the Shares to ASA upon exercise of the Option, (b) prevent or disable the
Shareholder from performing any of its other obligations under this Agreement,
or (c) prevent or disable ASA from exercising any of its rights under this
Agreement; including the exercise by any Shareholder of any right to repurchase
or restrict the transfer of the Shares.
5. Certain Events. Each Shareholder agrees that this Agreement and the
obligations hereunder shall attach to such Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation such Shareholder's heirs, guardians, administrators or successors. In
the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of CompuTrac affecting
CompuTrac Stock, or the acquisition of additional shares of CompuTrac Stock or
other securities or rights of CompuTrac by any Shareholder, the number of Shares
listed on Schedule A beside the name of such Shareholder shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of CompuTrac Stock or other securities or rights of
CompuTrac issued to or acquired by such Shareholder.
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6. Stop Transfer. CompuTrac agrees with, and covenants to, ASA that CompuTrac
shall not register the transfer of any certificate representing any
Shareholder's Shares, unless such transfer is made in compliance with this
Agreement. In the event that this Agreement is terminated, CompuTrac shall
remove such stop transfer order as soon as practicable.
7. Shareholder Capacity. No person executing this Agreement who is or becomes
during the term hereof a director or officer of CompuTrac makes any agreement or
understanding herein in his or her capacity as such director or officer. Each
Shareholder signs solely in his, her or its capacity as the record holder and
beneficial owner of such Shareholder's Shares and nothing herein shall limit or
affect any actions taken by a Shareholder in his or her capacity as an officer
or director of CompuTrac to the extent specifically permitted by the Merger
Agreement.
8. Further Assurances. Each Shareholder shall, upon request of ASA or Merger
Sub, execute and deliver any additional documents and take such further actions
as may reasonably be deemed by ASA or Merger Sub to be necessary or desirable to
carry out the provisions hereof and to vest the power to vote such Shareholder's
Shares as contemplated by Section 3 in ASA and the other irrevocable proxies
described therein.
9. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the earlier of (a) the date upon which
the Merger Agreement is terminated in accordance with its terms (subject to the
provisions of Section 4.3.3), or (b) the Effective Time (as defined in the
Merger Agreement).
10. Public Announcements. Each Shareholder will consult with ASA before
issuing, and provide ASA with the opportunity to review and comment upon, any
press release or other public statements with respect to the transactions
contemplated by this Agreement and the Merger Agreement, and shall not issue any
such press release or make any such public statement prior to such consultation,
except as may be required by applicable law, court process or by obligations
pursuant to any listing agreement with any national securities exchange.
11. Miscellaneous.
11.1 Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to such terms in the Merger
Agreement.
11.2 All notices, requests, claims, demands and other communications under
this Agreement shall be in writing and shall be deemed given if delivered in the
manner set forth in Section 10.8 of the Merger Agreement and to the parties at
the following addresses (or at such other address for a party as shall be
specified by like notice): (a) if to ASA or Merger Sub, to the address set forth
in Section 10.8 of the Merger Agreement; and (b) if to a Shareholder, to the
address set forth on Schedule A hereto, or such other address as may be
specified in writing by such Shareholder.
11.3 The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
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11.4 This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective
(even without the signature of any other Shareholder) as to any Shareholder when
one or more counterparts have been signed by each of ASA, Merger Sub and such
Shareholder and delivered to ASA, Merger Sub and such Shareholder.
11.5 This Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
11.6 This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
11.7 Neither this Agreement nor any of the rights, interests or obligations
under this Agreement shall be assigned, in whole or in part, by operation of law
or otherwise, by any of the parties without the prior written consent of the
other parties, except by laws of descent; provided that ASA may assign this
Agreement and its rights hereunder to an affiliate of ASA. Any assignment in
violation of the foregoing shall be void.
11.8 If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any event, be held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions herein and the application
thereof to any other circumstances, shall remain in full force and effect, shall
not in any way be affected, impaired or invalidated, and shall be enforced to
the fullest extent permitted by law.
11.9 Each Shareholder agrees that irreparable damage would occur and that
ASA and Merger Sub would not have any adequate remedy at law in the event that
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
ASA and Merger Sub shall be entitled to an injunction or injunctions to prevent
breaches by any Shareholder of this Agreement and to enforce specifically the
terms and provisions of this Agreement in any court of the United States located
in the State of Delaware or in Delaware state court, this being in addition to
any other remedy to which ASA and Merger Sub are entitled at law or in equity.
In addition, each of the parties hereto (a) consents to submit such party to the
personal jurisdiction of any Federal court located in the State of Delaware or
any Delaware state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (b) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, and (c) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court located in the State
of Delaware or a Delaware state court.
11.10 EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT.
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11.11 No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by
such party.
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IN WITNESS WHEREOF, ASA, Merger Sub and the Shareholders have caused this
Stockholders Agreement to be duly executed and delivered as of the date first
written above.
ASA INTERNATIONAL LTD.
By: ______________________________
Name: ______________________________
Title: ______________________________
RAINMAKER SOFTWARE, INC.
By: ______________________________
Name: ______________________________
Title: ______________________________
SHAREHOLDERS:
_______________________________________
Xxxxx X. Xxxxxxxx
_______________________________________
Xxxx X. Xxxxxxxx
ACKNOWLEDGED AND AGREED
TO AS TO SECTION 6:
COMPUTRAC, INC.
By: ______________________________
Name: ______________________________
Title: ______________________________
BO:70988.5
SIGNATURE PAGE TO STOCKHOLDER'S AGREEMENT
SCHEDULE A
Number of Shares
Shareholder Name and Address of CompuTrac Stock
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Xxxxx X. Xxxxxxxx 1,987,394
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Xxxx X. Xxxxxxxx 21,778
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
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